Court File and Parties

Court File No.: CV-19-003 (Kingston) Date: 2023-06-30 Superior Court of Justice - Ontario

Re: REGINALD CYR and LINDA CYR, Applicants And: THE CATARAQUI CEMETERY COMPANY, Respondent

Before: Mr. Justice Graeme Mew

Counsel: Andrew Lister, for the applicants Michael D. Swindley, for the respondent

Heard: In writing, at Kingston

Costs Endorsement

[1] In April 2022, I heard an application which asked me to interpret the formal judgment which was taken out following my decision in Court File No. CV-10-403-SR (reported at 2017 ONSC 5819). Two paragraphs of that judgment, the form and content of which had been agreed by counsel, could not be reconciled with each other. They effectively provided different descriptions of the dimensions of the area in the cemetery for which the applicants had acquired interment rights. In my endorsement dated 11 July 2022 (2022 ONSC 4070), I commented, at paragraph 7, that “[a]dding to the challenge now posed is that today the parties take different positions on the dimensions of the Cyr Family Garden than those which they advocated for at trial”.

[2] Ultimately, I concluded that what had been in contest at the previous trial was whether or not a trapezoid shown on a plan of survey which was annexed to the 2017 judgment had been acquired by the applicants as the “Cyr Family Garden”. I acknowledged that a consequence of that decision was that the applicants ended up acquiring rights over a greater area than the Cemetery had bargained for.

[3] Accordingly, in paragraph 23 of my endorsement, I noted that:

During the hearing of this application, I suggested to counsel that one solution might be for the parties to agree what fair consideration for the acquisition of the larger trapezoid area would have been, as it does seem that the pricing of what the Cyrs acquired was based on the two areas described in paragraphs 1 and 2 of the judgment. While that was not a solution which the court could impose, it could have provided an appropriate compromise. The parties did not take the hint.

[4] The applicants prevailed. After recording that substantial indemnity scale fees of the applicants and the respondent were respectively $57,609.21 and $17,594.56, my endorsement encouraged the parties “to think long and hard about what might be appropriate in terms of costs”, particularly having regard to what might be seen as a fortuitous outcome given the positions that had been taken in the previous litigation.

[5] To their credit, the parties were able to hammer out what appears to have been a comprehensive agreement which settled the remaining matters in the application and agreed to modify the dimensions of the Cyr Family Garden.

[6] Unfortunately, the parties were unable to resolve the issue of costs, and have asked the court to determine the costs that should be paid and by whom.

[7] The applicants seek costs, on a partial indemnity scale, in the amount of $38,596.40.

[8] The respondent opposes the applicants’ claim on two main grounds, namely:

a. That the applicants could and should have accepted a proposal made by the respondent on 18 June 2019, which was substantially in accordance with the suggestion which I made at paragraph 23 of my endorsement; and b. The amount claimed is disproportionate and excessive in all the circumstances (the respondent’s costs, on a partial indemnity scale, would, by comparison, amount to $11,599.22).

[9] In exercising my discretion to award costs, costs will normally follow the event. The applicants were entirely successful on the application. Factors that inform the exercise of my discretion are codified in Rule 57.01 of the Rules of Civil Procedure. Those factors are, of course, subject to the overarching principle of proportionality and the reasonable expectations of the parties: Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.).

[10] Both parties refer to offers to settle which they made during the course of negotiations over the proper interpretation and application of the 2017 judgment.

[11] While, as I have already noted, the parties were ultimately able to come to an agreement on the outstanding issues in the application, that agreement was not made until 11 January 2023. In their costs submissions, the applicants ask the court to take into account the importance of the issues for the applicants, pointing out that the land in question is not only the resting place of the applicants’ parents, but is the place that they have chosen for themselves as their own final resting place. They complain that the respondent initially breached my previous judgment in various respects unilaterally, and thereafter rejected three settlement offers made by the applicants, only to later settle the dispute on terms that were very similar to those contained in what is described as “Cyr settlement offer #2” made on 22 June 2020.

[12] In particular, the applicants made Cyr settlement offer #2 purportedly pursuant to Rule 49 of the Rules of Civil Procedure. It is a complex offer, consisting of 23 paragraphs, including details such as the type of plants that should be part of the landscape plan of what was described in the offer at the “Smaller Cyr Family Garden”. This makes it challenging to compare with either the outcome determined by me, or the subsequent agreement between the parties.

[13] Nevertheless, I accept that there are many similarities between what the applicants offered in June 2020, and what was eventually agreed in January 2023.

[14] However, I cannot ignore that what the respondent offered in June 2019, was essentially what I had in mind in paragraph 23 of my endorsement.

[15] When I addressed the issues of costs arising from the original actions I concluded, at paras. 40 and 41 of my costs decision (2017 ONSC 7359) that each side should bear its share of responsibility for costs and that the ultimate outcome had, to all intents and purposes, been a draw.

[16] On this occasion, one party has clearly prevailed. However, the reason that this application was commenced is because the parties, through their lawyers, agreed to a form of judgment which, on closer examination and when it came to implementation, did not work. It did not work because, as I have indicated earlier in this costs endorsement, and at far greater length in my endorsement following the hearing of the application, two of the paragraphs could not be reconciled with each other, or perhaps expressed differently, contradicted each other.

[17] The respondent submits that the application “was, in some way, a necessity for both parties to bring closure to the interpretation and application of the Judgment” and, accordingly, that the parties should bear their own costs.

[18] While I would not take serious issue with that statement, it has to be seen in the context that the application was brought after the respondent had unilaterally adopted its interpretation of the judgment, resulting in what the applicants described as actions that “desecrated” their burial grounds. Garden plants and trees were removed. Hickey markers demarcating the graves of the applicants’ parents were moved. The area was left unkempt.

[19] The application was commenced on 7 January 2019. The respondent delivered a notice of appearance on 15 May 2019. The first proposal by the respondent - that the applicants could purchase the land at issue - was not made until just over a month later. A further offer to settle was then made by the respondent on 13 March 2020, which the respondent asserts would have left the applicants in a similar position to what has now been agreed.

[20] It is regrettable that the parties did not come to the agreement that they eventually arrived at much sooner. I am, however, satisfied that it was reasonable - indeed, necessary - for the applicants to commence this application when they did. Doing so provoked the several offers that were subsequently made, including some that are said to resemble either what I suggested in my endorsement that the parties should have done, or that the parties eventually agreed to do.

[21] I am persuaded that the applicants should receive an award of costs, reflecting at least a portion of the expense incurred in starting the application and guiding it through its early stages.

[22] I have, as a result, concluded that the respondent should pay the applicants’ costs, fixed in the amount of $10,000 all inclusive.

Mew J. Date: 30 June 2023